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Just over a year ago two drivers brought an action against Uber in the Employment Tribunal (ET) arguing that they should be treated as employees. The ET concluded that Uber drivers were not employees but that they were workers as a result of which they were entitled to be paid the minimum wage, receive paid statutory holiday and be paid statutory sick pay.

The landmark ruling signalled the beginning of a wave of challenges from individuals which led to a government review into modern working practices and the publishing of the Good Work Report in the summer which has put forward a number of significant recommendations to address inequalities in the work place particularly those working in the gig economy. We wait to see whether any of the recommendations will be incorporated into legislation, but given Brexit it may take some time before we see new law being introduced.

Uber hoped to overturn the ET’s decision at the Employment Appeal Tribunal (EAT). There appeal has been dismissed. In a nutshell Uber argued that it operates a similar business model to local taxi firms and that the relationship it has with its drivers is one of agency.

The type of questions the Tribunal asked itself in the Uber case were:

Q: Who are the individuals working for, you or the end user of the service?

A: For me.

Q: What is the true nature of your working arrangement with the individuals, having regard to all of the circumstances?

A: The working arrangement is for me and my benefit.

Q: Can the individuals grow their own business?

A: No.

Q: Do the individuals have an ability to negotiate terms or establish a relationship with the end user of the service?

A: No.

Q: Does the individual have to accept work on your terms?

A: Yes

Q: Is the individual integrated into your business?

A: Yes

Test yourself, if you engage self employed individuals or consultants in your business and if your responses are the same as those in the answer section then its probably time you properly re-evaluate the employment status of these individuals and how they are working for you as they are highly likely to fall into the worker category.

To ensure that the relationship is truly one of self employment you must be able to demonstrate that you do not exert control, direction or supervise these individuals in respect of the work that they are doing for you.

Uber have indicated that given the financial consequences of this ruling they will apply to leap frog the Court of Appeal and appeal the EAT decision directly to the Supreme Court. We will have to wait and see what the next stage in this saga will be but for what its worth we don’t think they are likely to be successful.

We act for businesses of all shapes and sizes and in many different sectors. Our advice covers all aspects of the employment relationship, helping to settle disputes, defending employment tribunal claims and providing immigration compliance audits.

Solicitor, Employment

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